Caveat Emptor, Part II: A Brief Overview of Twitter’s Terms of Service and Related Documents

In our September 2010 issue of Socially Aware, we provided a brief overview of Facebook’s “Statement of Rights and Responsibilities,” the social media service’s complex set of terms and conditions that companies frequently “click-accept” with little review (often, in a rush to establish their Facebook presences). Naturally, this situation is not limited to Facebook— for many if not most social media services— when users first sign up for an account, they are required to agree to the service’s lengthy standard terms and conditions of use. It’s part of life on the Internet.

And Twitter is no exception. When you sign up for a Twitter account, “By clicking the button, you agree to the terms below.” And although Twitter’s core Terms of Service are a bit shorter than Facebook’s Statement of Rights and Responsibilities, Twitter’s terms similarly link and branch off to a variety of policies, guidelines, and related documents, all of which govern your use of the service.

At the top of Twitter’s hierarchy of terms and conditions are the Twitter Terms of Service. Those Terms of Service incorporate two documents by reference: (1) Twitter’s Privacy Policy, which notes that use of Twitter’s services constitutes consent to the collection, transfer, manipulation, storage, disclosure, and other uses of information described in such policy and (2) the Twitter Rules, which describe how end-users should and should not use Twitter, and impose a variety of rules regarding content, spam, and abuse. But the Terms of Service also link to Twitter’s Developer Rules of the Road (described by Twitter as “an evolving set of rules for how ecosystem partners can interact with your content”), which govern the use of Twitter’s application programming interface (API)and, more generally, Twitter’s philosophy around how information and content shared on Twitter can and cannot be used.

Given the complexity of Twitter’s ecosystem, the Developer Rules of the Road branch off to and incorporate a variety of other policies and guidelines, including the service’s Display Guidelines, (which describe how Tweets must be displayed), rules on trademark usage, automation rules, spam rules (which actually loop back to the end-user-focused Twitter Rules), and various other documents. A complete list of Twitter’s terms, conditions, rules, guidelines, and best practices can be found here— there are 36 documents in total.

Below, we describe a few key terms from Twitter’s various written policies. These terms are not necessarily uncommon for Internet-based services — particularly services that are free to use — but they’re worth keeping in mind:

Key Term for End-Users — Broad License to User Content.Foremost for many end-users of social media services, is the license being granted to such services in users’ posted content — and end-users grant Twitter a typically broad license. By posting photos or other content on Twitter, end-users grant Twitter the right to “use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute” such content in any manner now known or later developed. The Terms of Service also expressly provide that such license “includes the right for Twitter to make [such content] available to other companies, organizations or individuals who partner with Twitter” for the purpose of distributing such content on other media and services. True, given that Tweets are publicly available by their nature (assuming a public account), one would expect a broad license grant. But the grant to Twitter gives Twitter the right to use Tweets for purposes other than simply operating the Twitter service, and the right to distribute those Tweets in ways that may not have even existed when the Tweets were originally posted. Although the broad license grant does apply to “protected” Tweets (i.e., Tweets that are not publicly viewable) and public Tweets alike, Twitter does state that protected Tweets will not appear in Twitter or Google searches, meaning that, as a practical matter, a user’s privacy settings should be useful in controlling how widely Twitter may disseminate the user’s Tweets.

Key Terms for Developers — API Terms. Foremost for many developers who leverage social media services, are the services’ rules for accessing their platforms and APIs. According to Twitter’s Terms of Service, unless otherwise permitted through Twitter’s services or terms, users are required to use the Twitter API in order to “reproduce, modify, create derivative works, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise use” Twitter’s content or services. In light of this, it is important for developers who leverage Twitter in their own apps and services to carefully review the terms and conditions governing Twitter’s API. Those terms and conditions are sprinkled throughout Twitter’s policies, including the Developer Rules of the Road (changes to which are archived at Twitter’s API Terms of Service Archive) and Twitter’s Rate Limiting page, which addresses the number of “calls” that can be made to various Twitter APIs and services over time. Of course, all of Twitter’s API restrictions are in addition to, and not in lieu of, those found in the site’s Terms of Service and elsewhere — per the Developer Rules of the Road, use of the API and Twitter content “are subject to certain limitations on access, calls, and use as set forth in the [rules], on dev.twitter.com, or as otherwise provided to you by Twitter.” Perhaps most importantly, Twitter retains the right to block use of the API and Twitter’s content if Twitter believes that a user has attempted to circumvent or exceed any limitations imposed by Twitter, and Twitter disclaims any liability for resulting costs or damages.

Key Terms for Everyone — Modifications to Twitter’s Terms and Services. Twitter reserves the right to unilaterally modify its Terms of Service and the form and nature of its services at any time. If Twitter determines in its sole discretion that changes to its Terms of Service are material, Twitter promises to notify users via a Twitter update or by email; nevertheless, as with changes to most websites’ terms of use, a user’s continued use of Twitter following such changes constitutes the user’s agreement to the modified terms. It is important to keep in mind that changes in a social media site’s services or terms of use — even seemingly tiny changes in the way a social media profile appears to end-users, or in what flavors of activities are or are not permitted on the site — can wreak havoc on a company’s costly social media strategy. Conveniently, Twitter provides an archive of previous versions of its Terms of Service, which can help users spot changes over time more easily.

Our message to end-users and developers alike remains what it was back in 2010: be sure to carefully review social media services’ terms and conditions so that you know what you’re getting into, particularly when you will be investing money or time in using a service for your business or building an app or site that relies on the service’s content or functionality.

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Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison & Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison & Foerster publishes this blog devoted to the law and business of social media.

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